Some recent landmark decisions

For the benefit of our readers and also to catch-up the recent developments, we are running in this post short notes on some of the landmark decisions in recent past. These decisions are landmark on various counts; either they reveal a jurisprudence shift or they deal with a legal controversy which was vividly followed up by national media and the citizens alike. Some are landmark on account of the sheer fact of these decisions being rendered by larger bench of the Supreme Court and thus an important and likely stable constitutional declaration flows from these decisions.

Constitution Bench decisions

1. This series of two decisions is actually a revisit of the constitutional stipulations relating to appointment of judges amongst the High Courts and the Supreme Court. The law was firmly settled by earlier larger bench decisions. However the incumbent Government initiated the process which led to amendment of the Constitution. This amendment was meant to bring in place a new positive legal order regarding the appointment process. In the first decision i.e. Supreme Court Advocates-on-Record Association v. Union of India [Writ Petition (Civil) No. 13 of 2015, decision dated 16.10.2015], a five-judges bench of the Supreme Court declared the amendment to the illegal being contrary to the basic constitutional principles. In essence, therefore, they revived the appointment process in place prior to this arrangement known as the 'Collegium'. However in this decision itself the judges agreed that there was room for improvement in the Collegium system and this led to the second decision. In this decision i.e. Supreme Court Advocates-on-Record Association v. Union of India [Writ Petition (Civil) No. 13 of 2015, decision dated 16.12.2015] the same five-judges of the Supreme Court broadly examined the suggestions received from various quarters towards improving the Collegium system, only to conclude that it was beyond the judicial realm to lay down the policy. On such account it directed the Government of India to frame 'Memorandum of Procedures' which would serve as the Working Document and lay down the protocol for the appointment of the judges. These decisions are landmark in various senses. Firstly they are by constitutional benches and thus carry significant weight. Secondly, there is a significant discussion on the 'basic structure principle' and also the importance of 'judicial review' and 'independence of judiciary', which are key constitutional tenets. Thirdly and more importantly, it is rare for the Supreme Court to declare as illegal a constitutional amendment and thus these decisions carry significant insight on the subject. 

 

 

2. The decision of another five-judges bench of the Supreme Court in Nabam Rebia v. Deputy Speaker [Civil Appeal No. 6203-6204/2016 decision dated 13.07.2016] is another significant decision for it delineates the scope and ambit of the powers vested in a Governor of a State under the Constitution. In this decision the Court was examining the allegations that the Governor did not adopt a bipartisan role which was expected of him and instead went beyond the scope of authority conferred upon him. In fact in this decision the Supreme Court reinstated the exective Government which had not found favour amongst the stipulations of the Government, which makes it perhaps an unprecedented decision on large counts. The case also involved the relationship between the Government and Speaker of a Legislative Assembly and how far could the Governor direct the Speaker to carry out specified functions. 

 

 3. Another decision, also of five-judges of the Supreme Court is in the case of Union of India v. V. Sriharan Writ Petition (Criminal) No. 185/2014 decision dated 02.12.2015] which dilutes a number of decisions on the subject as also the common understanding to declare that a life sentence means imprisonment till the end of life. There was a common understanding that life sentence means 14 years. However the Court has declared otherwise and held that the power of the Government to remit sentence after 14 years is not a matter of right but only a possibility for early release. This decision also declares that the Court has power to give a fixed sentence (say 20 years) to a person without any possibility of early release.

Some other decisions, but not of constitution benches of Supreme Court

4.  This decision in Kedar Nath Yadav v. State of West Bengal [Civil Appeal No. 8438/2016] runs into over 200 pages and relates to validity of land acquisition in West Bengal relating to Tata Nano plant. Dealing with a very emotive issue for the local residents and also a politically sensitive matter for the incumbent government, the Supreme Court has dealt extensively with land acquisition laws and the interse considerations required to be considered for upholding acquisition of land. In conclusion the Supreme Court has directed that "land shall be given back to the land owners and compensation if any paid to them shall not be recovered from them those who have not collected it are free to collect the same in lieu of damages for deprivation of possession for ten years".


5.  Additionally, another Supreme Court decision is the case of Shreya Singhal v. Union fo India [Writ Petition (Criminal) No. 167 of 2012, decision dated 24.03.2015] where certain provisions of the Information Technology Act, 2000 has been declared as unconstitutional and illegal for they are impediment to freedom of speech and expression guaranteed by the Constitution to its citizens. This decision renders interesting insights, also on a comparative legal analysis perspective, the various dimensions of free-speech jurisprudence and its ambit under the Constitution of India. A must read for students.


6. In a very recent decision in Chandrakeshwar Prasad v. State of Bihar [Criminal Appeal No. 932 of 2016, decision dated 30.09.2016] the Supreme Court has cancelled the bail granted by the High Court to Md. Shahabuddin. This decision presents interesting insights over the competing considerations between personal liberty of an individual and the larger societal interests. Referring to its earlier decisions on the subject, the Supreme Court held that it was important to balance the "fundamental right to individual liberty with the interest of the society".


7. While this is not a decision, this nonetheless has severe ramifications for the future of Supreme Court. In V. Vasanthakumar v. H.C. Bhatia [Writ Petition (Civil) No. 36 of 2016 order dated 13.07.2016] three judges of the Supreme Court have referred to a larger bench adjudication of certain constitutional questions, which are as under;

1. With access to justice being a fundamental right, would the said right stand denied to litigants, due to the unduly long delay in the disposal of cases in the Supreme Court?
2. Would the mere increase in the number of judges be an answer to the problem of undue delay in disposal of cases and to what extent would such increase be feasible?
3. Would the division of the Supreme Court into a Constitutional wing and an appellate wing be an answer to the problem?
4. Would the fact that the Supreme Court of India is situate in the far North, in Delhi, rendering travel from the Southern states and some other states in India, unduly long and expensive, be a deterrent to real access to justice?
5. Would the Supreme Court sitting in benches in different parts of India be an answer to the last mentioned problem?
6. Has the Supreme Court of India been exercising jurisdiction as an ordinary court of appeal on facts and law, in regard to routine cases of every description?
7. Is the huge pendency of cases in the Supreme Court, caused by the Court not restricting its consideration, as in the case of the Apex Courts of other countries, to Constitutional issues, questions of national importance, differences of opinion between different High Courts, death sentence cases and matters entrusted to the Supreme Court by express provisions of the Constitution?
8. Is there a need for having Courts of Appeal, with exclusive jurisdiction to hear and finally decide the vast proportion of the routine cases, as well as Article 32 petitions now being decided by the Supreme Court of India, especially when a considerable proportion of the four million cases pending before the High Court may require review by a higher intermediate court, as these judgments of the High Courts may fail to satisfy the standards of justice and competence expected from a superior court?
9. If four regional Courts of Appeal are established, in the Northern, Southern, Eastern and Western regions of the Country, each manned by, say, fifteen judges, elevated or appointed to each Court by the Collegium, would this not satisfy the requirement of ‘access to justice’ to all litigants from every part of the country?
10. As any such proposal would need an amendment to the Constitution, would the theory of ‘basic structure’ of the Constitution be violated, if in fact, such division of exclusive jurisdiction between the Supreme Court and the Courts of Appeal, enhances the efficacy of the justice delivery system without affecting the independence of the judicial wing of the State?
11. In view of cases pending in the Supreme Court of India on average for about 5 years, in the High Courts again for about 8 years, and anywhere between 5- 10 years in the Trial Courts on the average, would it not be part of the responsibility and duty of the Supreme Court of India to examine through a Constitution Bench, the issue of divesting the Supreme Court of about 80% of the pendency of cases of a routine nature, to recommend to Government, its opinion on the proposal for establishing four Courts of Appeal, so that the Supreme Court with about 2500 cases a year instead of about 60000, may regain its true status as a Constitutional Court?

8. And then in this series, we refer to the decision of the Delhi High Court in Government of National Capital Territory of Delhi v. Union of India [Writ Petition (Civil) No. 5888/2015 decision dated 04.08.2016] where the High Court has opined upon the interse powers of the Government of India and the Government of NCT of Delhi. Running into about 200 pages, this decision relied upon a nine-judge Supreme Court decision in New Delhi Municipal Corporation v. State of Punjab (1997) 7 SCC 339 to hold that Delhi continues to be Union Territory, albeit with special status, but does not enjoy statehood. This decision opines upon a long pending political struggle in Delhi and may not be the last word on the subject as the Supreme Court is currently seized of the dispute. Nonetheless various interesting aspects relating to the special position of Delhi and its legal attributes.

Legal Adda: Another online portal devoted to law

"Welcome to Legal Adda - The Legal Community in India. LegalAdda seeks to build a vibrant community of legal professionals in India."

This is how the the latest additional of online legal director in India introduces itself. Inagurated by the Union Law Minister himself, instead of a resource directory, Legal Adda looks more like a networking site directed exclusively towards law students. With its featuring of the forums, interest groups (a feature which is yet to take off), a directory of events (which also requires furnishing), job-opportunties (on last check none were listed) and scholarships, it looks more to me like a follow-up development of LawEntrance.com along with few features of LegalServiceIndia.com.

While the opening page offers much hope and success, it hardly seems to have gained any popularity (upon which it relies for its successful functioning) for the entire effort seems to be based upon a peer-to-peer support structure with law students helping each other by sharing their project works, papers etc. rather than a content provider supported by the organising team. And it is this very aspect about the site which makes me sceptical about its success for it does not offer much initivative or apprisal for law students to come up and share their ideas and versions; something which has already been tested without much apprecation on sister websites like legalserviceindia, manupatra, etc. for the lack of referee-appraisal or editorial approval makes them a dump yard of all sorts of cut-copied-pasted works which lack the ability to get published in worthwhile journals.

Plus, on last access, half of the links did not work out the way they should (with the content listings blank). It seems like the organising team was in a hurry to upload the site; a reason which gains strength from the fact that the supporting organisation was Microsoft and it brought in the Law Minister to announce its IPR Scholars and so thought it wise to schedule the launch along with.

I hope LegalAdda does not turn out to be one more additional to the B-grade law content holding websites publishing novice and un-reliable content, just like the earlier websites on same theme and philosophy.

Indian Kanoon: An amazing online law resource for India

If perhaps the government was not up to it, a fellow Indian finally set himself up for the challenge and did put it up. Welcome to the world of digitalized legal information on India. A student of University of Michigan, as I am informed by my fellow-bloggers, Sushant, has launched a search engine (which looks just simple and friendly like google) to search for and about Indian laws. In fact it is not surprising that the launch of Indian Kanoon has already been written about by pluggd.in and featuring on wikipedia and technorati

But then this doesn’t stop me from putting my own thoughts and views on the development. Given the fact that I have been an ardent supporter of technology and its interaction with the legal systems [see related posts; Installing Technology in Courts: A more forward, and India Code: A good legal resource] and in fact really appreciate the Knowledge Commission’s view to this regard as well, it really feels good to find significant work being done to the direction of making laws more searchable and convenient to work on.

And therefore we have with us, IndianKanoon.com which promises us to remove two structural problems with our legal structure. To quote

“While it is commendable to make law documents available to common people, it is still quite difficult for common people to easily find the required information. The first problem is that acts are very large and in most scenarios just a few section of laws are applicable. Finding most applicable sections from hundreds of pages of law documents is too daunting for common people. Secondly, laws are often vague and one needs to see how they have been interpreted by the judicial courts. Currently, the laws and judgments are separately maintained and to find judgments that interpret certain law clauses is difficult.”

And to address this anomaly, IndianKanoon seeks to achieve the convenience scenario by “breaking law documents into smallest possible clause and by integrating law/statutes with court judgments. A tight integration of court judgments with laws and with themselves allows automatic determination of the most relevant clauses and court judgments

Well I am not sure what that meant technically and how that it done, but in so far as it is doing the same, excellent. For convincing myself, I ran a search with search term ‘dowry’ and it did bring out the most relevant results. First it gave the definition of dowry under the relevant enactment and then the case laws upon the point. Then another definition under a different enactment and cases thereunder. Excellent I would say for the reason that it not only categorizes content but the search results are also amicably admirable

Nonetheless I tried it again and ran searches with search term “income tax”, “value added tax”, “raw material” and it did indeed turn out with excellent results. This makes me totally agree with the last line of description of the search-engine “Hope Indian Kanoon helps you in your search for Indian laws and their interpretations.” Way to go Sushant !!!

Interactive legal systems: Change with the changing times

When I read this article on Slaw, I really felt that this is it, this is the one thing which is really the future of the Indian legal system. Gone are the days when law used to be the residuary profession of those who could not get a break in other professions. It is really becoming a self-serving, importance-gathering profession and with times to come and advent of technological instruments in the system, it will only gain more weight. Yes really, where the development coincides with a strong legal system, technology is the need of the hour of a modern Indian lawyer. I am sure readers from other jurisdictions will find this article out of place for already such resources are being consistently used in their legal institutions.

Technology does make life easy and also allows the individuals and institutions to make multi-tasking the foreword for growth. This article by Jordon [click here for the full article] reflects the tasks for the lawyers looking forward to give customized solutions to their clients, even before they are able to find the right words for the ailment to seek to look for. Then there is another perspective. Legal systems cannot be cut off from the main-frame social activity. I have always been the supporter of the school which believes that law follows the society and it is in this context that I put that the legal profession cannot afford to cut itself from the changes that take place in the society, of which technology is an important determinant.

The lawyer today can no longer afford to be content with just being undated with the latest citations and amendments. He is not a professional alone whose job is to fight and win cases from his clients. But in fact he is also a harbinger of social change. For it is he that decides as to how suitable the options are, as suggested by other professionals like economists, engineers, doctors etc. in the upcoming state of affairs. It is he who advises their clients of their future course of affairs, even before they have decided to embark upon them.

The lawyer today, therefore has the necessity built upon him to argue not with others but also with himself the need to bring on such interactive dimensions as Jordon suggests, which not only add utility and value to the services he offers but also gives an added advantage to the client in terms of the advantage they derive from such online interactions.

I am not much of a html buff but if I am correct, the cookies and all which the websites place on the users system are meant to in fact carry such tasks and offer customized solutions to the online users. There is no reason why the lawyers cannot make use of such techniques especially when they are relying more and more these days on online communications and have devoted sites and servers catering to their needs. In fact I believe the legal professional has to go a long way and in fact turn out to be more progressive than the rest of the professions for it is only in a favourable and stimulating legal environment that sister professions came their full way and thwart the might of rigour and skill.

I am sure these words sound too huge for an average Indian lawyer for whom technology in law is confined to online causelists and so some extent manupatra, but then I am doubly sure that with the Knowledge Commission working out with its full might in this regard [click here for its report] and also the National Judicial Academy feeding the judges with the latest update in technology and also not to forget the Law Schools who impress upon the younger generation the need to use technology and most importantly how to use it, it seems that the future of legal profession in India is best described as an interactive one.

Online law resources in India

Though the IT industry came out really well from the Y2K bug, it hit the law profession really hard. And on began the profession's crusade to computerization and uprising from manual filings. Starting with the provision of select decisions being made available online [click here], later up the cause-lists [click here for the dedicated site], and court profiles [click here]. The march has really come on a long way now with exclusive website for the Supreme Court and other High Courts (though not all of them have the privilege yet).

Then we had the private players coming in the market. The first ones were really a conglomeration of various weblinks with no particular content of their own. I fail to recall those names because we never really searched through them. We used yahoo (google was yet to be born then) or other search engines. The second generation legal resource website were a bit of improvement but not all together different. They were more like newsletters which carried updates from various/select legal segments and then links for other content. Some of these which are still hosted can be viewed here; http://www.vakilno1.com/ ; http://www.helplinelaw.com/ ; http://www.laws4india.com/ ; http://www.indialawsite.com/. Then there were websites of publishers who simply were too fazed by the idea of losing out customers who looked for products online. Some of these, just to point out, can be recalled as [ http://www.cliofindia.com/ ; http://www.ebc-india.com/ ; etc.]

The third generation law resource websites, as I put them, came only with the modern lawyer's onslaught into the profession. The 5-year national law schools churning out research-freaks, knowledge hungry professionals were not satisfied with reading decade old books which gave no idea of the recent trends in the areas they researched on. Though the international law virtual libraries came to persuade them to a large extent (and still do considerably), that was not found sufficient as they simply lacked the Indian legal material which was the need of the hour.

This niche area was very well provided by manupatra. I was in my second year of law school then and simply was unsure whether such an online site would find a buyer in the market and was surprised that it not only did, it by its aggressive marketing tactics, it did become the product subscribed for by all decent sized law firms and used across the industry. Though a paid one like all international law resources, www.manupatra.com has become one essential research tool for the lawyer today.

Now even the hard-copy based SupremeCourtCases (or simply SCC) has come out with its own web version [http://www.scconline.com/]. Then there is also a new player [http://www.indlaw.com/] trying to capture the market, which really is getting cramped with discussion oriented websites [http://www.legalserviceindia.com/ ; http://www.lawentrance.com/] which offer a lot of comments but no reliable-comprehensive resources which are really required for winning cases and like.

Even then, when manupatra is the market leader in this regard, still there is a not of space for new participants and in fact an entire industry is open to development and growth. Compared to the resources which Westlaw and Lexis-Nexis offer, the online law resource market in India is yet to take off the ground.

India Code: A good legal resource

Legal Researchers, looking for material upon Indian law are now really better off as far as the Indian legislation is concerned. Telling from experience, except for the paid websites which have high subscription charges, it has really been a mess finding the enactments in India. We all have had our experience with VakilNo1.com, legalserviceindia.com, ... and our own versions of finding material on Indian law.

But then this treat from the Government of India is really worthwhile and genuine. Titled the India Code [click here for the Code], it contains all Central/Parliamentary legislation in India, right from the oldest [being the Bengal Districts Act of 1836] to the latest [the Central Educations Institutions (Reservation in Education) Act], search able in easy search terms; the 'year' wise and 'free text search' being my favorites. And for non-starters, it also carries a full downloadable list of enactments both alphabetically and chronologically. There is even a link for searching the site in Hindi.

And this not just all. It carries link to other relevant sites like the Law Ministry, Law Commission, Company Law Ministry, National Human Rights Commission, to name a few. There is also a link for searching the text of the Indian Constitution.

A really good attempt at bring the law closer to the people, I will say. But then I look forward for the same treatment being given to the State enactments. No doubts a few states keep updated website with all the links but then the majority of States have simply not adopted the online-governance model and its hard to find even one legislation of their's online. I hope the people in-charge would be listening to this and working a way through.